ICWA – Page 7 – Turtle Talk

Singel to Discuss Brackeen in 2022-2023 ACS National Supreme Court Review

July 10, 2023Singel

Please join the American Constitution Society tomorrow, July 11, 2023, from 2:30 – 4:00 pm EDT for the National Supreme Court Review, which examines the most consequential cases of the 2022-2023 Term. Prof. Wenona Singel will offer commentary on Haaland v. Brackeen and discuss the decisions of this Term and their long-term effects on law and policy.

Welcome Remarks

Russ Feingold, President, American Constitution Society

Featuring

Chris Geidner, Publisher and Author, Law Dork, moderator

Debo Adegbile, Partner and Chair of the Anti-Discrimination Practice, WilmerHale

Ruben Garcia, Professor of Law and Co-Director of the Workplace Law Program, University of Nevada, Las Vega William S. Boyd School of Law

Kelly Moser, Senior Attorney and Leader of the Clean Water Program, Southern Environmental Law Center

Wenona Singel, Associate Professor of Law, Michigan State University College of Law and Director, Indigenous Law & Policy Center

Stephen I. Vladeck, Charles Alan Wright Chair in Federal Courts, The University of Texas at Austin School of Law

The American Constitution Society is a State Bar of California approved provider. This event has been approved for 1.5 hour of California MCLE credit.

As the nation’s leading progressive legal organization, ACS is committed to ensuring that all aspects of our events are accessible and enjoyable for all. If you require any accommodations, please contact us at info@acslaw.org.

The registration link is available here.

Fletcher Draft Paper: “Federal Indian Law as Method”

July 10, 2023Matthew L.M. Fletcher

Please check out “Federal Indian Law as Method,” likely forthcoming in the University of Colorado Law Review. Here is the abstract:

This Essay is written in the shadow of a series of noxious attacks on core principles of federal Indian law, most notoriously Haaland v. Brackeen, a challenge to the constitutionality of the Indian Child Welfare Act (ICWA). The Supreme Court did not reach the merits of the equal protection challenges, but during oral argument, several judges expressed skepticism that Congressional Indian affairs enactments that grant privileges or preferences to Indian people could survive scrutiny under an equal protection analysis. Justice Kavanaugh, one of the judges most interested in the equal protection claims, wrote separately to highlight these issues, asserting that “the equal protection issue is serious.”
The parties siding with ICWA’s constitutionality argued to the Court that the Mancari case is a guide, whereas the opponents to ICWA’s constitutionality wanted to Court to ignore the case altogether. This Essay is a full-throated defense of the Mancari as a method of constitutional interpretation. Not only is the Mancari method correct, it is also the only justifiable method. This Essay proceeds with a short background on federal Indian law and its default interpretative rules. Next, the Essay surveys the application of and challenges to the Mancari method. Finally, the Essay concludes with a comparison of the methods proposed to replace or displace the Mancari method.
This Essay was prepared for the 31st Annual Rothgerber Symposium at Colorado Law School.

Fort on Defending ICWA, 2013-2023

July 10, 2023Kate Fort

Article-5_Fort

This Article lays out the history of the fight over ICWA from Baby Girl to Haaland, from my perspective as a clinical professor who has been involved with every major ICWA case since 2013, as well as my observations about why ICWA was so vulnerable to an organized litigation attack despite continued bipartisan and widespread support of the law.

The rest of the issue is here, with an essay by Chemerinsky and an article on Dobbs by Delgado and Stefancic.

Alex Pearl on ICWA in the Multiverse

June 30, 2023Matthew L.M. Fletcher

M. Alexander Pearl has published “The Indian Child Welfare Act in the Multiverse” in the Michigan Law Review.

ACS Broken Law Podcast on Brackeen Featuring Wenona Singel

June 27, 2023June 27, 2023Matthew L.M. Fletcher

Here is “A Win for Tribal Sovereignty.”

This Land Special Brackeen Decision Episode

June 23, 2023Matthew L.M. Fletcher

Here.

Opinion here.

A Quick Brackeen Opinion Post

June 15, 2023Kate Fort

The decision was written by Justice Barrett with all but Justice Thomas and Alito joining her opinion. Justices Gorsuch and Kavanaugh wrote (very different) concurrences. Justices Thomas and Alito dissented.

Essentially the Court held that ICWA is not beyond the power of Congress to effectuate, and does not violate commandeering concerns by making states follow federal law. Neither the foster parents or the state of Texas had standing to bring the equal protection arguments related to the third placement preferences. They did not rule on any merits regarding equal protection and ICWA. Gorsuch’s concurrence laying out the history of federal Indian Law and ICWA is veritable who’s who of Indian law professors. Kavanaugh’s concurrence wants us to make sure we understand there was no ruling on equal protection, only on standing to bring the claim. Justices Thomas and Alito did their usual thing.

This is, without question, a massive win. It’s a stunning victory upholding both the foundations of federal Indian law and the Indian Child Welfare Act. The original district court decision finding ICWA unconstitutional, as well as the parts of the Fifth Circuit decision finding the same, are no longer good law. There is, at this time, no major change in ICWA practice. We can talk details in the coming weeks. So for now I’ll leave you with the last sentence of the Gorsuch concurrence while we all breath a sigh of relief:

In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to
grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.

SCOTUS Affirms Constitutionality of ICWA 7-2

June 15, 2023June 15, 2023Matthew L.M. Fletcher

Here is the opinion in Haaland v. Brackeen.

More stuff here.

West Virginia Supreme Court Repudiates Existing Indian Family; Orders Transfer to Tribal Court

June 14, 2023Kate Fort

Ex re Delaware Tribe v. Hon. Nowicki-Eldridge

This is, as you might imagine, a description of a mess where the West Virginia agency never contacted the Tribe, and then didn’t respond to attempts by the Tribe to get in contact with the agency. Then foster parents were granted intervenor status as well. The decision doesn’t state who made the EIF argument, but the Indian Law Clinic has been hearing the argument more and more from foster parents seeking to deny transfer to tribal court. While the Clinic was not involved in this case, it is reminiscent current appeals the Clinic is working on. My sense from the opinion is that the tribal briefing was likely excellent. The West Virginia Supreme Court didn’t buy it:

This unequivocal statement plainly dispels any notion that the EIF exception is compatible with the ICWA. Accordingly, we join the “swelling chorus of [jurisdictions] affirmatively reject[ing] the EIF exception[,]” ICWA Proc., 81 Fed. Reg. 38778, 38802 (June 14, 2016), and hold that West Virginia does not recognize the Existing Indian Family exception to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to -1963 (2021). Accordingly, the circuit court erred in adopting the EIF exception and subsequently relying on that exception to determine that the ICWA was inapplicable to this case.

Another fun thing that has been happening a lot is parties arguing the 1979 Guidelines rather than the 7 year old 2016 Regulations and Guidelines:

Before this Court several of the parties cited this guidance as a basis for arguing that the Tribe is not entitled to transfer because it knew of these proceedings in December 2021 but did not move to transfer until eight months later in August 2022. What the circuit court and the parties fail to recognize is that the 1979 Guidelines were explicitly abrogated and replaced by the BIA when it promulgated the 2016 Guidelines. See Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96476 (Dec. 30, 2016) (“The [2016] guidelines replace the 1979 and 2015 versions[.]”). Therefore, we do not find the 1979 Guidelines persuasive, nor do we rely upon any guidance contained therein.

***

The proceeding regarding termination of the parental rights of Respondent Father was not at all advanced at the time the Tribe filed its motion to transfer the proceeding. Respondent Father had not been adjudicated; indeed, neither a preliminary nor adjudicatory hearing had even been scheduled. While five months passed between March 2022 and the Tribe’s motion to transfer in August 2022, the record reveals that those months were devoted to ascertaining whether the ICWA applied to this case, and not to any consideration of the merits of the amended petition. In short, there was nothing “advanced” about this proceeding when the Tribe moved to transfer.

Finally, this Court did not just send the case back for reconsideration, but rather ordered the lower court to transfer jurisdiction to the Delaware Tribe.

Here is the press coverage on the case: https://www.courthousenews.com/delaware-tribe-of-indians-applauds-west-virginia-supreme-court-decision-affirming-its-jurisdiction-in-child-welfare-case/